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2018 DIGILAW 867 (CAL)

Subhas Chandra Murthy v. Union Of India

2018-11-30

AMRITA SINHA

body2018
JUDGMENT : Amrita Sinha, J. 1. This is the second round of litigation in between the parties. The petitioner was a constable of the Central Industrial Security Force (CISF for short). A departmental proceeding was initiated against him and the disciplinary authority passed the order of dismissal from service by holding that the petitioner was guilty of the charges framed against him. The petitioner preferred a departmental appeal against the order of dismissal dated 30th May, 1983 and the appellate authority affirmed the said order of dismissal on 5th December, 1984. 2. The petitioner challenged the order of dismissal from service dated 30th May, 1983 as well as the order of the appellate authority dated 5th December, 1984 by filing a writ petition being civil order no. 16069 (W) of 1985. The aforesaid writ petition was finally heard and disposed of on 16th June, 2011. 3. The Hon'ble Court held that the decision of the appellate authority was influenced by the para-wise comment of the disciplinary authority and there was no material and/or argument to show that the para-wise statement was made available to the petitioner. The Hon'ble Appeal Court also observed that the impugned order of the appellate authority suffers from the vice of non application of mind while dealing with the question of quantum of punishment. The Hon'ble Court had quashed the order of the appellate authority on these two counts and directed the appellate authority to hear the petitioner's appeal on the above two counts only. 4. In compliance of the order passed by this Court the appellate authority reheard the petitioner and passed a fresh reasoned order on 17th September, 2011 affirming the order of dismissal. The reasoned order dated 17th September, 2011 is impugned in the instant writ petition. 5. In terms of the order passed by the Hon'ble Court the appellate authority was to consider the case of the petitioner either without relying on the para-wise comments of the disciplinary authority or to supply a copy of the para-wise comments to the petitioner and thereafter decide the appeal. The appellate authority was also to decide whether the punishment imposed upon the petitioner was proportionate to the charges levelled against him. 6. It has been submitted by the petitioner that the appellate authority acted de hors the provisions of the CISF Rules 1969. The appellate authority was also to decide whether the punishment imposed upon the petitioner was proportionate to the charges levelled against him. 6. It has been submitted by the petitioner that the appellate authority acted de hors the provisions of the CISF Rules 1969. The points agitated by the petitioner in the earlier writ petition were again agitated in the instant case. 7. The learned Advocate for the petitioner relies upon the decisions of Ram Chander vs. Union of India, (1986) 3 SCC 103 (para 5), Delhi police & Ors. vs. Satya Narayan Kausik, (2016) 6 SCC 303 (paras 15, 16 and 17) in support of his case. He submits that the writ Court has the power to interfere with the punishment imposed by taking into consideration the facts and circumstances of the case. He further submits that the dismissal from service is a matter of grave concern of a civil servant who after a long period of service may not deserve such a harsh punishment. 8. The scope of the appellate authority to rehear the appeal of the petitioner was very limited. The Hon'ble High Court in the earlier writ petition had already set out the terms on which the appellate authority was to decide the appeal. From the order impugned it appears that the memorandum of charges was acknowledged by the petitioner and he submitted his representation against the said memorandum of charge. An Enquiry Officer was appointed to conduct enquiry into the charges levelled against the petitioner. The statement of the prosecution witnesses were recorded in presence of the petitioner and the petitioner was afforded an opportunity to cross-examine each and every prosecution witness. The copies of the statement of the witnesses of the day to day proceedings recorded by the Enquiry Officer were provided to the petitioner free of charge. The petitioner was also afforded opportunity to produce his defence witnesses. The documents that were relied upon by the prosecution were supplied to the petitioner. The petitioner submitted his written statement in his defence to the Enquiry Officer. The enquiry report along with the defence of the petitioner was forwarded to the disciplinary authority for passing necessary orders. The disciplinary authority after considering the enquiry report and the defence statement submitted by the petitioner awarded the penalty of dismissal from service. 9. The petitioner preferred a departmental appeal challenging the order of dismissal. The enquiry report along with the defence of the petitioner was forwarded to the disciplinary authority for passing necessary orders. The disciplinary authority after considering the enquiry report and the defence statement submitted by the petitioner awarded the penalty of dismissal from service. 9. The petitioner preferred a departmental appeal challenging the order of dismissal. It appears that the appellate authority reheard the matter and after examination of the evidence on record came to the conclusion that there were adequate documentary, oral and circumstantial evidences during course of departmental enquiry to bring home the charges levelled against the petitioner. He further came to the conclusion that the punishment awarded to the petitioner was commensurate with the gravity of the charges levelled against him. 10. From the impugned order it appears that the appellate authority has examined the evidences of the witnesses as well as the cross-examination made by the petitioner in the departmental proceeding. There were several witnesses who had deposed against the petitioner. The petitioner was unable to find out any contradictory statement of the witnesses in his cross-examination. It appears that the appellate authority has dealt with in details the evidences given by the witnesses at the time of the departmental enquiry. The appellate authority also noted the fact that the petitioner was provided ample opportunity to cross-examine the witnesses which the petitioner availed of in case of some and declined in case of one. The appellate authority came to the conclusion that the charges levelled against the petitioner was duly proved. 11. As regards the quantum of punishment the appellate authority observed that during his very short span of service of about seven years the appellant was awarded punishment on four occasions. The details of the nature of delinquency committed and the nature of penalty has been set out in the impugned order. The authority held that the past service of the petitioner was not an unblemished one. The authority observed that the acts of the petitioner were not conducive for a disciplined force. The authority also observed that the petitioner was bound to undergo/suffer penalty duly awarded by the competent authority but he failed to undergo such penalty which tantamount to a precedent in raising further grievances. The authority observed that the acts of the petitioner were not conducive for a disciplined force. The authority also observed that the petitioner was bound to undergo/suffer penalty duly awarded by the competent authority but he failed to undergo such penalty which tantamount to a precedent in raising further grievances. The authority opined that there was no procedural irregularity in conducting the departmental enquiry by the Enquiry Officer and on the part of the disciplinary authority in dealing with the case. The authority further observed that the principle of natural justice has been complied with in letter and spirit. The action of the petitioner is subversive to a disciplined force which cannot be accepted from a force member and the errant member is liable to be ousted from the Force. The appellate authority came to the conclusion that punishment awarded to the petitioner was commensurate with the gravity of the charges levelled against him. 12. The order passed by the appellate authority in compliance with the order passed by this Hon'ble Court is a perfectly reasoned one. The appellate authority applied its mind, re-evaluated the evidences of the witnesses, confirmed that ample opportunity was given to the petitioner to defend his case and thereafter decided whether the punishment was commensurate with the charges framed against him. 13. The scope of judicial review under Article 226 of the Constitution of India is extremely limited. It is the consistent view of the Supreme Court that the High Court cannot sit in appeal on the finding of the departmental proceeding or re-appreciate evidence. The Supreme Court held that while exercising jurisdiction under Article 226 the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principle of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. See Lalit Popli vs. Canara Bank & Ors., (2003) 3 SCC 583 , Government of A.P. vs. Mohd. Nasrullah Khan, (2006) 2 SCC 373 . 14. Applying the aforesaid principle it is seen that the appellate authority has followed the procedures as laid down in the statute with regard to conduct of the disciplinary proceeding and have also awarded punishment taking into consideration the factors relevant for the same. Nasrullah Khan, (2006) 2 SCC 373 . 14. Applying the aforesaid principle it is seen that the appellate authority has followed the procedures as laid down in the statute with regard to conduct of the disciplinary proceeding and have also awarded punishment taking into consideration the factors relevant for the same. There does not appear to be any procedural defect and the principle of observance of natural justice has also been taken care of. More over this court in the earlier writ petition had already laid down the parameters within which the appellate authority was to consider the case of the petitioner. There is hardly any scope to re-agitate the issues all over again. 15. The writ petition is devoid of merit and accordingly the same stands dismissed. 16. There will however be no order as to costs. 17. Urgent certified photo copy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.